I do not agree with the majority in reversing this decree. The majority admits that one witness, Clyde Robbins, is a "self-confessed tool" of appellee, but in its opinion it is stated:
"This witness was very successfully impeached and the trial court apparently put no credence in his testimony and we cannot say that he should have been believed in view of his bad reputation and his criminal record, although he is corroborated in the fact that he did interview both Brady and Hutchinson in an attempt to `fix' them for appellee by both of them."
It is said in the opinion, however: "But conceding that Robbins is not worthy of belief, still we have the testimony of jurors Charley Grigsby and W. F. Fallis to consider."
The chancellor who tried this case has had considerable experience as a trial lawyer, has heard witnesses testify, has observed their demeanor on the stand, and in this case the witnesses testified in his presence. He had a much better opportunity to pass upon the credibility of such witnesses and the weight to be given to their testimony than do the members of this court. We have nothing here but the printed record, while the trial court had the opportunity to observe the demeanor of the witnesses on the stand.
"Among the advantages that the jury always has over the court which is asked to review its finding is the opportunity given to weigh witnesses, as well as their testimony. From the moment that a witness is called to the stand until he leaves it and is lost to view his physical and mental characteristics are subject to the analysis of 12 students of human nature, having different degrees of capacity, and more or less experience, who pass judgment upon him as well as his story." Gorman v. Hand Brewing Co., 28 R.I. 180, 66 A. 209.
The disadvantages of the appellate court in weighing evidence is well stated as follows: "In reviewing the determination of a trial court upon questions of fact, an appellate tribunal is not warranted in reversing upon the sole ground that, in its opinion, the trial court should *Page 425 have reached a different conclusion upon conflicting evidence. Any other rule would nullify the peculiar advantages which the original tribunal possesses, and which have been described in another part of this work in observing the manner and appearance of the witnesses produced, and the various physical and mental peculiarities by which the mind of the professional observer determines the degree of credit which ought prudently to be attached to oral testimony." 2 Moore on Facts, 1419.
Roy Richardson, the appellee, testified that it is not true that he talked personally with Charley Grigsby. Witness recalled Grigsby's visit to the office, but he said that Grigsby was drunk and was there only a short time, and that nothing was said about any juror, or anything else concerning a lawsuit.
The opinion of the majority says that the fact that appellee himself talked to Grigsby, as set out in the opinion, shows a successful attempt to thwart the administration of justice and a contempt for, or disregard of, its orderly procedure.
Roy Richardson swears positively that he did not talk to Grigsby about the lawsuit or the jurors. If there is any truth in what Grigsby says about it, he himself was an accomplice and there is not a syllable of corroboration. The statement in the opinion is that he was corroborated by the jurors to whom he talked, but of course, no one will contend that that was a corroboration of anything Grigsby claimed that Richardson had said.
Under our law, no one can be convicted of a felony on the testimony of an accomplice, unless corroborated, and this conviction is worse than being convicted of a felony.
The statute on the testimony of an accomplice reads as follows: "A conviction can not be had in any case of felony upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof. Provided, in misdemeanor cases a conviction may be had *Page 426 upon the testimony of an accomplice." 4017, Pope's Digest.
The opinion states that the testimony of Grigsby and Fallis must be accepted as true. The chancellor, who saw them, heard them testify and had every opportunity to judge of their credibility, did not think so. The opinion then asks why, if these statements are not true, would these two friends perjure themselves to do him a great wrong?
I do not know why they would do this. I do not know why Judas, for thirty pieces of silver, betrayed Christ; but I know that he did do it. In order to point out the Master to his enemies, Judas approached him saying, "Hail, Master!" and kissed him, but I do not know why he did it, except it appears very reasonable that Judas was not His friend.
The action of Grigsby and Fallis does not seem to me to have been the action of friends. One law that seems to me to have been entirely overlooked by the majority is the law announced by the Master in Chapter 7, verse 12, of St. Matthew. It is as follows: "Therefore all things whatsoever ye would that men should do to you, do ye even so to them; for this is the law and the prophets."
As a further evidence that the trial court had a better opportunity to judge of the credibility of witnesses than this court has, it may be said: "The tongue of the witness is not the only organ for conveying testimony to the jury; but yet it is only the words of a witness that can be transmitted to the reviewing court, while the story that is told by the manner, by the tone and by the eye of the witness must be lost to all but those to whom it is told." Carter v. Bennett, 4 Fla. 283; Moore on Facts, vol. 2, pp. 1422, 1423.
"`It can scarcely be repeated too often,' said the Illinois Supreme Court, `that the judge and jury who try a case in the court below have vastly superior advantages for the ascertainment of truth and the detection of falsehood over this court sitting as a court of review. All we can do is to follow with the eye the cold words *Page 427 of a witness as transcribed upon the record, knowing at the same time, from actual experience, that more or less of what the witness actually did say is always lost in the process of transcribing. But the main difficulty does not lie there. There is an inherent impossibility of determining with any degree of accuracy what credit is justly due to a witness from merely reading the words spoken by him, even if there were no doubt as to the identity of the words. However artful a corrupt witness may be, there is generally, under the pressure of a skillful cross-examination, something in his manner or bearing on the stand that betrays him, and thereby destroys the force of this testimony. Many of the real tests of truth by which the artful witness is exposed, in the very nature of things cannot be transcribed upon the record, and hence they can never be considered by this court.'" Vol. 2, Moore on Facts, p. 1419, et seq.
I think that the chancellor had a very much better opportunity to know the truth than have the members of this court. I am sure that he rendered a decree according to his best judgment, and I think it should be affirmed.
Mr. Justice HUMPHREYS agrees with me in this dissent.